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March 10, 2005

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mythago

As far as I can tell, he just doesn't want the courts to look at gender as an issue, because then you have a serious problem banning SSM. He also doesn't seem to have read Loving, because he keeps bringing up this notion that classification is OK as long as everybody is treated equally badly.

Galois

He also doesn't seem to have read Loving, because he keeps bringing up this notion that classification is OK as long as everybody is treated equally badly.

Well, he claims whether or not it is a classification is up to the judge. What would be a racial classification if race were used as the characteristic somehow is not a gender classification when gender is used. I still don't understand how this is, but he must be using some strange definition of "classification". Regardless of what word is used, though, the reasoning of earlier cases would still apply. And that reasoning makes clear that (1) references to groups of people with the same classification or with different classications inherently makes use of such a classification (2) it is the individual who has the right to equal protection and not the group, and thus we must ask is some outcome dependent on how an individual has been classified (3) even if it is permissible to offer different but "equal" facilities dependendent upon the classification, that could neve apply to offering different but "equal" spouses, because human beings cannot just be substituted one for another.

I think there are better cases than Loving which spell out this reasoning. The first is McLaughlin, case of a few years before Loving which explicitly overruled Pace v. Alabama which used precisely the same reasoning as Nephtuli. The other case was a California case of Perez v. Sharp. While not binding in other states, it is quite persuasive. I discuss and provide some relevant quotes from it in a previous post. Of particular importance was the fact that it occurred in 1948 when racial segregation was still legally permissible in general.

mythago

The dissent in Perez also tracks (in some cases, repeats) the language used by anti-SSM activists: will of the people, think of the children, etc.

Galois

Good point. I've already shared some of my favorite quotes from the majority opinion, perhaps soon I'll share some of my favorite from the dissent. As with Goodridge it was a 4-3 decision.

Pete

"First of all it would imply we could avoid racial classifications just by making reference to couples of the same race."

Well, the bestiality laws already take care of that, since biologists agree that there is only one human race, so anyone outside your race is also outside your species. Hitler's inane rants about dogs not mating with cats are inapplicable to so-called human "intermixing" since black cats mate with white cats without inhibition.

To take a more serious crack at what you probably meant to ask, laws prohibiting black people from marrying white people were clearly a "vestige of slavery" and contrary to the 13th amendment. Justice Black wrote a majority opinion that the 13th amendment required an end not only to slavery, but to vestiges of slavery; the case involved housing discrimination against black people.

Incidentally, if you're citing Loving v. Virginia, I suggest that you look at the actual case, 338 U.S. 1, rather than relying on what other sources tell you about it. The Goodrich court, for example, actually misattributes a quote to _Loving_; the quote that actually came from a California case that involved an incestuous couple.

The Supreme court struck down the Virginia "miscegenation" law because it concluded that preserving white supremacy was not a compelling state interest, and because it determined that the anti-"miscegenation" law was "invidious," i.e. it was written with the specific intent to exclude blacks from full participation in society. In other words, the law was born out of racism.

Nothing of the sort can rationally be said of marriage. The definition of marriage as union of man and woman pre-dates the advent of homophobia. Greeks had strong cultural supports for long-term homosexual relationships; Plato even wrote about the superiority of male-male relationships to marriage relationships. Under the flamboyantly homosexual monarchy of James VI, courtiers and ambitious writers, such as William Shakespeare, found it politically convenient to write verses that like Plato's praising homosexual love over heterosexual love. And yet the Greeks and the British continued to define marriage as a union of man and woman, and King James VI himself kept a wife. Remember James' four immediate predecessors had split from the pope, rejoined Catholicism, split again from the pope, and formed a national church ... clearly the British monarch had the power to change the law to allow same-sex marriage. It doesn't seem to have even occurred to James VI.

So in the light of history, I can't see how anyone could seriously argue that the pre-Goodrich definition of marriage was designed to exclude homosexuals from their rights. Since marriage is not invidious, an *actual* reading of Loving v. Virginia does not pose any challenge to pre-Goodrich marriage.

The Goodrich court must have been aware of this, because they covered their Loving hatchet job with a conclusory and vague statement that marriage's gender diversity requirement also violated the Massachussetts constitution. The legal effect of that mumbo-jumbo is to bar the US Supreme Court from hearing appeals on the Massachussetts court's construal of Loving v. Virginia. When a state supreme court claims that they have independent basis for their ruling based on their interpretation of the state constitution, then the Supreme Court is not allowed to examine either the federal or the state argument, since it has to assume that the state supreme court interpreted its own constitution accurately.

If the Goodrich court thought that its 14th amendment arguments could withstand the scrutiny of the Supreme court, it would not have made that opaque unsupported claim about the state constitution. After all, the chief justice of the MA high court has said outright that she wants to see MA ssms recognized in other states (when she answered the Governor's question on ssus). If this is what she wanted, and if she really believed that her reasoning about the 14th amendment was tenable, then she would have wanted the US Supreme court to examine her reasoning. If they had, and had ruled in her favor, then same-sex marriage would be the law for the whole country. Since MA high justice herself, the one credited with writing the Goodrich opinion, is demonstrably less than confident about the solidity of her 14th amendment argument, I'm not sure you should bet the farm on it.

Galois

Pete, I wrote in another thread about the numerous mistakes you are making concerning the Massachusetts decision, the least of which is its name (Goodridge not Goodrich). Here is yet another series of mistaken claims that you have made TWICE. First of all the court did not misattribute the quote to Loving, it correctly attributed it to Perez. It wrote:


As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra at 717 ("the essence of the right to marry is freedom to join in marriage with the person of one's choice"). See also Loving v. Virginia, supra at 12.

It is clear that the quote itself is correctly attributed to Perez and the court alludes to Loving not for the quote, but rather in support of the same idea.

Secondly, although you are correct that the quote came from Perez, a California case, you are incorrect that it was a case dealing with an incestuous marriage--a rather bizarre mistake that you have twice asserted. Perez dealt with an interracial marriage, and I write about it frequently (see here).

I disagree with your reading of Loving, but the point that "white supremacy" is not necessary to invalidate parallel racial classification see this post.

Galois

Also, Pete, your attack on the Mass SJC for not ruling based upon the 14th Amendment is completely unfair. The court was not asked to rule on any federal issue and to do have done so sua sponte, especially when it was unnecessary to decide the case, would have been completely irresponsible and I believe illegal.

Pete

Surely you are not unaware that the Goodrich court was flooded with amicus briefs from pro-ssm groups around the country. The your proposition that not a single one of those briefs raised federal issues, strains credulity.

"Pete, your attack on the Mass SJC for not ruling based upon the 14th Amendment is completely unfair. The court was not asked to rule on any federal issue and to do have done so sua sponte, especially when it was unnecessary to decide the case, would have been completely irresponsible and I believe illegal."

Again, you've turned what I said completely upside down. The SJC DID rule based on the 14th Amendment: The Goodrich four placed the federal reasoning first, which in court holdings and briefs means specifically that writers consider those the stronger reasoning. But they also covered themselves from appeal by appending the conclusory and barely developed afterthought that ssm also violates to the Massachussetts constitution.

You accused me of not having read Goodridge, and now you say that the Goodridge court didn't rule on a 14th amendment issue?

(fyi, the links you are giving me do not work)

Pete

The court was not asked to rule on any federal issue and to do have done so sua sponte, especially when it was unnecessary to decide the case, would have been completely irresponsible and I believe illegal.

Incidentally, in addition to being wrong on the case holding (which did, as I just explained, include holdings on the 14th amendment), you are wrong on the meta-law surrounding this case. A state court has every right to introduce federal constitutional issues, however, unless the court provides a backup state basis for their ruling (as Goodridge pretended to do), then their ruling on federal law is subject to review by the US Supreme Court.

In that light, I hope that what I said is now more clear to you: The Goodrich court must have been aware of this, because they covered their Loving hatchet job with a conclusory and vague statement that marriage's gender diversity requirement also violated the Massachussetts constitution. The legal effect of that mumbo-jumbo is to bar the US Supreme Court from hearing appeals on the Massachussetts court's construal of Loving v. Virginia. When a state supreme court claims that they have independent basis for their ruling based on their interpretation of the state constitution, then the Supreme Court is not allowed to examine either the federal or the state argument, since it has to assume that the state supreme court interpreted its own constitution accurately.

If the Goodrich court thought that its 14th amendment arguments could withstand the scrutiny of the Supreme court, it would not have made that opaque unsupported claim about the state constitution. After all, the chief justice of the MA high court has said outright that she wants to see MA ssms recognized in other states (when she answered the Governor's question on ssus). If this is what she wanted, and if she really believed that her reasoning about the 14th amendment was tenable, then she would have wanted the US Supreme court to examine her reasoning. If they had, and had ruled in her favor, then same-sex marriage would be the law for the whole country. Since MA high justice herself, the one credited with writing the Goodrich opinion, is demonstrably less than confident about the solidity of her 14th amendment argument, I'm not sure you should bet the farm on it.

Again, I cannot see how you could get from this that I was criticizing Goodridge for *not* ruling based on the 14th Amendment. What I described as their "Loving hatchet job," was the reasoning behind the court's 14th amendment holding.

Galois

First of all sorry, about the links. I think I've fixed them.

I admit that I could be wrong with regards to whether the Mass SJC court could sua sponte introduce federal issues. Although frankly with your past track record I don't take your word for it. And even if it could once the case was resolved on state grounds wouldn't it be even more inappropriate to raise an issue unnnecessary to the resolution of the case.

Now as to whether the court did so, ruling on the 14th Amendment, let us look at the decision again. I have reread it and it does not rule on 14th amendment grounds. It says it agrees with the same reasoning used by the California Supreme Court and the US Supreme Court in analyzing the 14th amdendment with its similar guarantee of due process. It also says it agrees with reasoning used by Vermont and Hawaii [edited: and Ontario] in analyzing their respective constitutions, although you are certainly not claiming that the court ruled based on the Vermont or Hawaii Constitution [or Canadian Charter of Rights]. The court was ruling entirely on the basis of Massachusetts law and the Massachusetts Constitution. As it wrote:


The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. See Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424 Mass. 586, 590 (1997); Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 416 (1973). That the Massachusetts Constitution is in some instances more protective of individual liberty interests than is the Federal Constitution is not surprising. Fundamental to the vigor of our Federal system of government is that "state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution." Arizona v. Evans, 514 U.S. 1, 8 (1995). [FN18]

The individual liberty and equality safeguards of the Massachusetts Constitution protect both "freedom from" unwarranted government intrusion into protected spheres of life and "freedom to" partake in benefits created by the State for the common good. See Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 273 (1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (1971). Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family--these are among the most basic of every individual's liberty and due process rights. See, e.g., Lawrence, supra at 2481; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Roe v. Wade, 410 U.S. 113, 152-153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Loving v. Virginia, supra. And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations. "Absolute equality before the law is a fundamental principle of our own Constitution." Opinion of the Justices, 211 Mass. 618, 619 (1912). The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage.

The Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious." Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974). [FN19] Under both the equality and liberty guarantees, regulatory authority must, at very least, serve "a legitimate purpose in a rational way"; a statute must "bear a reasonable relation to a permissible legislative objective." Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 270 (1992). See, e.g., Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 778 (2002) (equal protection); Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422 (1965) (due process). Any law failing to satisfy the basic standards of rationality is void.

The plaintiffs challenge the marriage statute on both equal protection and due process grounds. With respect to each such claim, we must first determine the appropriate standard of review. Where a statute implicates a fundamental right or uses a suspect classification, we employ "strict judicial scrutiny." Lowell v. Kowalski, 380 Mass. 663, 666 (1980). For all other statutes, we employ the " 'rational basis' test." English v. New England Med. Ctr., 405 Mass. 423, 428 (1989). For due process claims, rational basis analysis requires that statutes "bear[ ] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare." Coffee-Rich, Inc. v. Commissioner of Pub. Health, supra, quoting Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418 (1940). For equal protection challenges, the rational basis test requires that "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class." English v. New England Med. Ctr., supra at 429, quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985) (Stevens, ,J., concurring). [FN20]


As you can see the the standard of review for the equal protection and due process arguments were based on previous Massaschusetts decisions regarding the interpretation of the Massachusetts Constitution.

Now since you claim that the court did indeed rule on the 14th amendment can you show me where the court held that the marriage prohbition violates any clause of that amendment.

Pete

Although frankly with your past track record I don't take your word for it.

Do stop being so tedious, Galois. We could be having a conversation, but you've side-tracked this into some sort of one-upmanship game over typos, attributions, and [url="http://gabrielrosenberg.typepad.com/galois/2005/02/discrimination_.html"ad homeniems[/url]. At the end of the day, your whole case turns on frightening people who stand in the way of your movement. For a while I thought you were different, but at the end of the day you are about form and peer pressure over substance. Well, you are rid of me, you can continue to misrepresent and mangle my claims until they are forgotten here. Enough of the pretense that this is a discussion; fact is that it's a war of cultural extermination, you are the aggressor, and you offer no escape or conditional surrender.

Galois

Pete, I won't be sorry to see you go. It's one thing to make typos. That happens. But I was getting annoyed by the constant reference to Goodrich, so I said something. And then you continued to refer to as such. (I won't even bother with your reference to "Peretz"). What has truly aggravated me, though, is your substantive lies. To name just a few:


  1. The Mass SJC was wrong because it misattributed a quote to Loving. (You made this accusation at least three times)
  2. Perez dealt with incestuous marriage.
  3. The Mass SJC held that the marriage prohbitions violate the 14th Amendment of the US Constitution (this was particularly aggravating because you then accused me of making an outrageoues mistake for correcting you on this).
  4. Zablocki concerned presumption of paternity.
  5. [updated] The Mass SJC threw out the presumption of paternity (again you made this a number of times and it was the entire basis for your complaints, so this one was pretty egregious.)

You have bitterly attacked the Mass SJC including its Chief Justice personally. You are not merely disagreing with the court's reasoning, but accusing it of making factual errors which are instead your own. I have wasted far too much time dealing with correcting your lies.

Pete

You lie. I attacked what the SJC said. I said nothing about her as a person. Her analogy to Loving stated the facts of her own case. You admitted as much yourself when you said:

http://gabrielrosenberg.typepad.com/galois/2004/03/all_about_the_p.html

"By sexual orientation the court means two people of the same sex intermarrying."

You have admitted that the Chief Justice made a much more substantive error than my ich/idge typo, so the only lie here is your own.

Galois

You have admitted that the Chief Justice made a much more substantive error than my ich/idge typo

What error? I don't see anything remotely comparable to the 5 errors above.

Pete

The court based its ruling on its finding that the marriage statute discriminated against sexual orientation in the same way that Loving and Perez discriminated on the basis of race. See . Therefore her whole ruling is based on an erroneous equivocation. (Note that I assume mistake rather than attacking her integrity). You admit: "By sexual orientation the court means two people of the same sex intermarrying." Well, try plugging that into her sentence, and try to make her analogy to Loving work. (Remember that Perez is a CA case therefore not binding on MA).

Pete

Ach. My link failed again. Here's the link I provided: http://gabrielrosenberg.typepad.com/galois/2004/03/all_about_the_p.html

Pete

"Zablocki concerned presumption of paternity."

Oops. I've confused _Zablocki v. Redhail_ with _Michael H. v. Gerald D.,_ 491 U.S. 110 My pardon, but it seems a little presumtuous and paranoid, even for you, to scream "lies" over an obvious citation error. I am not an attorney and I never asked anyone to accept my understanding of the law without investigating it themselves, so you could make less of a parade. You've made some mistakes yourself, and I don't think anyone here's been as discourteous to you about your mistakes as you have been about mine. Some might argue that a state chief justice should be held to a higher standard than a nonlawyer.

Pete

The Mass SJC held that the marriage prohbitions violate the 14th Amendment of the US Constitution (this was particularly aggravating because you then accused me of making an outrageoues mistake for correcting you on this).

1. I said your mistake was ludicrous, not "outrageoues," :rolleyes:
2. you hadn't "corrected" me when I said you were mistaken; instead, you had erroneously accused me of being angry with the chief judge for NOT raising a 14th amendment issue, which she did, as I showed when I quoted the chief justice's attempt to overturn the Supreme Court's interpretation of Loving.

3. You made the ludicrous claim that "The court was not asked to rule on any federal issue" (ignoring the huge volume of amicus briefs that asked the court to address that issue).

4. You claimed that for the court to raise federal issues "sua sponte, especially when it was unnecessary to decide the case, would have been completely irresponsible" and possibly illegal. (Yes, you later made a passive-aggressive motion that this was probably incorrect, but then you are cataloging errors that I have corrected and retracted, and calling them "lies," so I guess this is standard fare for your board).

I will do you the courtesy of assuming these were just silly mistakes, rather than "lies."

Galois

Pete, I would not say that the whole ruling is based on an erroneous equivocatoin. I do agree that the court could have been more clear and precise when it said:


In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance--the institution of marriage--because of a single trait: skin color in Perez and Loving, sexual orientation here.

A clearer formulation would have been, "...skin color in Perez and Loving, sex here" or alternatively "...the skin color of the chosen spouse in Perez and Loving, sex of the chosen spouse here". Still, I wouldn't say that the statement is erroneous. The individuals in Loving and Perez were denied not because of their skin color taken apart from everything else, but rather because the skin color of their spouse/desired spouse was the "wrong" skin color to go with their own. Likewise if we understand sexual orientation as an intention to marry a spouse of the "wrong" sex to go with one's own, the analogy makes some sense. But as I said, it could have been clearer.

Nor was the entire case based on this analogy. The decision rested on the fact that the court found no legitimate state interest served by restriciting same-sex couples from marrying. I understand you disagree with that, but it has nothing to do with the court's reading of Loving or Perez. As the court noted:


The Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious." Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974)

Yes Perez was not binding on MA, but I firmly believe that the court was bringing in both Perez and Loving not as binding authority on the interpretation of the Federal Constitution, but rather as persuasive authority on how similar concepts (in Article 1) should be interpreted in the Massachusetts Constitution. This seems to be an area where we still disagree and I firmly believe you are mistaken as a matter of fact on whether the court ever held that the provision violated the Federal Constitution.

A few more words, and then I may not be able to respond until midweek. I find Perez very persuasive. One can certainly argue that as it pertains to marriage, just because racial classifications have no justification it does not follows that gender classifications also have justification. I do think Perez is very persuasive for why justification is needed, though. It explains very well why the argument that "nobody is denied the right to marry" and "the gender classification is neutral" fail as a matter of logic. The dissent in Perez (another controversial 4-3 decision) is also eerily familiar.

Finally, I believe I said that if I had written Goodridge I would have written it differently. I agree with most of the decision and the holding, though. To get the best sense of my views, you can read this blog. In terms of the case itself I was more in agreement with J. Greaney's concurrence.

Pete

"The decision rested on the fact that the court found no legitimate state interest served by restriciting same-sex couples from marrying."

Correct me if I'm wrong, but my understanding is that the court only can measure whether a state interest is legitimate/rational, once it's established that a genuine issue of fundamental rights or equal protection is on the table in the first place. If a state government passed a law requiring all traffic lights to contain four colors, without saying what the fourth light was going to be used for, I don't think someone could sue to force the court to decide whether the state's requirement was rational.

I am not satisfied with the reasoning that the court justifies its review of the law. The court does, to its credit, raise the question of definitions, but it's answer, as best I can tell, is something like oh, if we worried about that issue, we'd never get to look at the equal protection question. It seems to me that they walked right around that hurdle, to pose the question of what was the state's basis for denying a woman the right to marry an other woman." In other words, the court redefined marriage to pose its issue question, before even starting its legal reasoning.

Look -- I was denied the right to join the armed forces because I was 10 days too old. Should I demand the right to have my age changed to 34, legally? After all, there are sickly people under 34 that look older and are less healthy than me. Why should I not have the rights of a 34 year old? I'm sure I could find plenty of co-plaintiffs who would feel better about themselves if their drivers' licence had a lower age number on it.

The court should not even need to reach the rational review stage. You can't change your age, unless we change the definition of age. And a man can't marry a man, unless we change the definition of marriage. It's not just about legally can't. It's that given what the word means, it's an impossibiity. This case differs from Perez and Loving because those were *illegal* marriages, banned marriages, wheras ssm is by definition, not marriage.

So many ssm advocates and what passes for "journalists" these days broadly assume that the talk of "defending marriage" is just a hypocritical screen for persecuting gays. Well that may be for some, but for most of us it really is about preserving our most treasured and successful ideas. I've offered one alternative way to allow men to marry men without changing the df of marriage (by broadening the df of man and woman), but this does not interest you. Why not?

Feel free to brood on this a couple days if you are busy -- I'm in no rush and wont have much time in the next 72 hours either. Thanks for giving me another chance.

Pete

Likewise if we understand sexual orientation as an intention to marry a spouse of the "wrong" sex to go with one's own, the analogy makes some sense.

Well, if you start out with the premise that marriage is nothing more than a union of two people, the Goodridge ruling makes sense. But it doesn't mean that. According to the 2000 census, the total number of same-sex households is 601,209, out of 106,741,426 households in the US. http://www.thetaskforce.org/media/release.cfm?releaseID=402 that's not even .5% ... I'm hard pressed to see how one could define sexual orientation as "desire to marry," in spite of the numbers for what you would call "heterosexuals." Marriage is not a natural institution, or a natural desire. Correct me if I'm wrong, but I am unaware of any culture that has developed a concept of marriage, when that culture was not yet cognizant of a man's biological role in making babies. You might say that marriage is a development of the understanding of paternity, in the same way that the gasoline engine is a development from our understanding of combustion.

In that light, since marriage is cultural rather than natural, to equate sexual orientation with desire for marriage would be tantamout to admitting that sexual orientation is cultural rather than biological, wouldn't it? I'm agnostic on that question, and to my knowledge it hasn't been resolved.

Galois

I disagree with you Pete regarding whether the court should reach the rational review stage with regards to being denied the right to joint the armed forces. There you were denied equal protection on the basis of your age. That should indeed be subject to rational review. I believe it would pass, especially as the court tends to be quite deferential to concerns with national security.

The denial of a marriage license was a denial of equal protection on the basis of sex. That gets subjected to intermediate review in federal law, and strict scrutiny in many states including Massachusetts. To say that the definition of marriage forbids it evades the issue. It is that aspect of the definition that is being challenged. I had a post a little ways back trying to explain why the "definition argument" is one I find extremely unpersuasive.

hayleyanne

How do we articulate a "classification" for purposes of an equal protection analysis. I would argue that the only sensible articulation of the class would be one that reflects who is being denied protection under the law. So, in the case of the miscegenation statutes, the class would be those persons seeking to marry someone of a different race. Similarly, with respect to marriage, the classification would be those persons who prefer homosexual relations over heterosexual relations. The classification should be "sexual orientation". To articulate the classification as "gender" is much too broad.

Galois

Sure one could say "persons seeking to marry someone of a different race", or "persons seeking to marry someone of the same sex", but what would that practical effect be of that? The classifications being used are still race and sex respectively. In cases where men or women are denied entry into a single-sex school we could say "persons seeking entry into a school of the other sex". I just don't see what difference that phrasing makes in the analysis. In terms of past cases, it has certainly made no difference, nor do I see how it should.

hayleyanne


Sure one could say "persons seeking to marry someone of a different race", or "persons seeking to marry someone of the same sex", but what would that practical effect be of that?

I just don't see what difference that phrasing makes in the analysis. In terms of past cases, it has certainly made no difference, nor do I see how it should.

The difference in the analysis would be huge. If we identify the "class" in terms of sexual orientation, the law gets rational basis scrutiny. If we identify it broadly as gender, it gets intermediate scrutiny.

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